II. PLAINTIFF IS ENTITLED TO COMPENSATORY AND PUNITIVE DAMAGES FOR SUMMARY EXECUTION
AND FOR THE MUNICIPAL

TORTS COMMITTED BY DEFENDANT 30

A. Plaintiff is Entitled to Compensatory and Punitive Damages for Summary Execution,
Measured by Accepted Principles of International Law and Federal Common Law 30

1. International Law and Federal Common Law Provide the Measure of Damages for
Plaintiff's International Law Claims 31

2. Under International Law and Federal Common Law, Plaintiff is Entitled to
Compensation for All Injuries Proximately Caused by Defendant's Acts 34

3. Plaintiff is Entitled to Punitive Damages Under International Law and Federal Common
Law 37

B. Plaintiff is Entitled to Compensatory and Punitive Damages for Harm Caused by
Defendant's Municipal Law Violations 40

1. Massachusetts Choice of Law Rules Determine What Law Applies to Plaintiff's
Municipal Law Claims 41

2. The Law of Portugal, Which Governs a Claim Arising in East Timor, Provides for
Compensatory and Quasi-Punitive Damages for Plaintiff's Claims 41

3. Massachusetts Law Would Provide for Compensatory and Punitive Damages for
Plaintiff's Claims 42

III. THE FOREIGN SOVEREIGN IMMUNITY ACT DOES NOT IMMUNIZE DEFENDANT FROM LIABILITY 44

IV. ALL OTHER DEFENSES HAVE BEEN WAIVED, AND, IN ANY EVENT, ARE WITHOUT MERIT 48

A. The Act of State Doctrine Does Not Protect Defendant 48

B. There is No Statute of Limitations Bar to Deciding This Suit 51

C. This Case Raises No Issue of Forum Non Conveniens 51

CONCLUSION 53

PROCEDURAL POSTURE

On September 17, 1992, the summons and complaint in this case were served on defendant
Panjaitan at his residence in Boston, Massachusetts. When defendant failed to respond in
any manner to the lawsuit, plaintiff moved for an entry of default pursuant to Rule 55(a)
of the Federal Rules of Civil Procedure. On February 24, 1993, this Court entered a
default against defendant. Plaintiff filed a Motion for Default Judgment on March 26,
1993, and was allowed until February 10, 1994 to file her documentation in support
thereof. Due to adverse weather conditions in the New York-New Jersey area, which
immobilized plaintiff's attorney, plaintiff has had to request an additional (and final)
extension until February 15, 1994.

INTRODUCTION

Plaintiff Helen Todd lost her only son, 20-year-old Kamal Bamadhaj, on November 12,
1991, when he and approximately 200 East Timorese were killed in a massacre committed by
troops under the direction and control of Indonesian General Sintong Panjaitan, the
defendant. Plaintiff asks this Court to award significant compensatory and punitive
damages against defendant, a man who is personally responsible for her son's death as well
as countless other human rights violations, and who has spoken proudly of the massacre in
which her son was killed.

Plaintiff filed this action on her own behalf and as administratrix of her son's
estate. However, plaintiff also filed this lawsuit as the symbolic representative of the
hundreds of East Timorese families who, unlike plaintiff, live in East Timor and are
therefore unable to take legal action without endangering their lives. As she says in her
declaration,

I bring this case not only as Kamal's mother but on behalf of hundreds of East Timor
mothers who are forced to grieve in silence for their dead children. Our grief and anger
is the same, but, unlike them, I can bring a case against a military officer without
putting the rest of my family in danger. Whatever compensation is awarded by the court in
this case will belong to the mothers of all the victims of the Dili massacre, and I will
find a way to get it into their hands.

Decl. of Helen Todd at 23.

The allegations of the complaint, which must be taken as true on a Motion for Default
Judgment, establish defendant's responsibility for the death of Kamal Bamadhaj. Military
personnel acting under defendant's "direction and control" executed plaintiff's
son as part of a massacre of East Timorese, committed pursuant to a program
"designed, ordered, implemented and directed" by defendant. Compl. 1, 3, 6, 18.

In addition, the complaint and the multiple declarations filed along with this
Memorandum demonstrate that this massacre was not an isolated incident. To the contrary,
defendant Sintong Panjaitan bears personal responsibility for a systematic pattern of
egregious human rights abuses in East Timor. Over the objections of the international
community, the Indonesian military has employed a brutal campaign of repression to
maintain its illegal occupation of East Timor. During much of his military career,
defendant has played a key role in the design and implementation of this campaign.

In ruling on the Motion for Default Judgment, the court must determine the amount of
compensatory and punitive damages to which plaintiff is entitled, and must confirm that it
has subject matter jurisdiction and that defendant is not immune from suit. In addition to
this Memorandum of Law, plaintiff has submitted the following documents to aid the court
in its determination of these factual and legal issues:

1. The declaration of plaintiff Helen Todd, which describes the circumstances of her
son's life and his death, and the loss she sustained when he was killed. Exhibit A
[hereinafter Todd Decl.].

2. The declaration of Robert Muntz, who employed Kamal Bamadhaj as a translator in East
Timor for several days before he was killed. Exhibit B [hereinafter Muntz Decl.].

4. The declarations of Liem Soei Liong, an expert on the Indonesian military and its
occupation of East Timor (Exhibit D) [hereinafter Liong Decl.]; Geoffrey Robinson, an
investigator with Amnesty International (Exhibit E) [hereinafter Robinson Decl.]; and
Allan Nairn, a journalist who has studied East Timor and was present at the massacre in
which Bamadhaj was killed (Exhibit F) [hereinafter Nairn Decl.], each of whom details
different aspects of the events leading up to the massacre, the human rights situation in
East Timor, and defendant's actions.

5. The declaration of Roger Clark, professor of law, explaining the international legal
status of East Timor and concluding that Portuguese or international law applies. Exhibit
G [hereinafter Clark Decl.].

7. Excerpts from the experts' affidavit submitted by international law professors in
the case of Xuncax v. Gramajo, 91-11564WD (D.Mass. filed June 6, 1991), which
confirms that summary execution constitutes a tort in violation of the law of nations.
Exhibit I [hereinafter Law Profs. Aff.].

8. A summary and copies of judgments for compensatory and punitive damages entered in
similar cases involving violations of internationally protected human rights. Exhibit J
[hereinafter Judgments in Similar Cases].

Plaintiff asks the court to award damages on the scale of the awards in similar cases,
which have ranged as high as $60 million (Rapaport v. Suarez-Mason, No. 87-2266
(N.D.Cal. Apr. 11, 1989). See Ex. J, Judgments in Similar Cases. Compensatory
damages must make reparations to plaintiff and to the estate of Kamal Bamadhaj, reflecting
his pain and suffering before he died, his mother's loss, and the loss of a lifetime of
earnings. Punitive damages must reflect the egregiousness of defendant's conduct, the
central role he played in these human rights abuses, and the international condemnation
with which his serious human rights violations are viewed. Such a substantial award will
send a strong message to defendant and his colleagues in Indonesia and around the world
that such conduct is not tolerable.

STATEMENT OF FACTS

On November 12, 1991, Kamal Bamadhaj was murdered in East Timor along with
approximately 200 East Timorese, when Indonesian soldiers under the direction and control
of defendant, and acting under his orders, opened fire on a peaceful memorial procession.
Cmplt. 13-18. The massacre and the execution of Bamadhaj were part of a "pattern and
practice of systematic human rights violations designed, ordered, implemented and directed
by the defendant." Id. at 18. With this lawsuit, his mother, plaintiff Helen
Todd, seeks compensation for herself and her son's estate, and punitive damages which hold
defendant accountable for the gross abuses for which he is responsible.

For the purposes of this motion, the allegations of the complaint must be accepted as
true. In order to support plaintiff's claim to substantial compensatory and punitive
damages, however, this Memorandum sets forth a more detailed account of the Kamal
Bamadhaj's death, the events leading up to his murder and the role of defendant Sintong
Panjaitan in those events.

A. Kamal Bamadhaj: Personal Background

Kamal Ahmed Bamadhaj was born in Malaysia in 1970. Todd Decl. at 2. After the
divorce of his parents, he was raised by his mother, plaintiff Helen Todd. Id. at
1. Educated first in Malaysia and then in New Zealand, he carried a New Zealand passport. Id.
at 2. He spent the year 1989 travelling and working in Europe, Malaysia and Australia,
then entered university in Australia in 1990, where he studied the Indonesian language and
Asian history and politics. Id.

Mr. Bamadhaj was active in several organizations which supported pro-democracy efforts
in areas under Indonesian control. Id. at 3. He spend two months in Indonesia
and East Timor in late 1990, visiting student groups, studying the political situation and
serving as a translator. Id. at 4.

The same interests drew him back to East Timor in October 1991. Id. at 5.
He had just finished his second year of university study. Id. at 6. The
Portuguese government and the United Nations announced that they would send a fact-finding
delegation to East Timor under the auspices of the United Nations Secretary General. Id.
at 5. There was widespread anticipation that the official visit might initiate
significant change, and Mr. Bamadhaj wanted to offer his services as a translator, to
observe and assist that process in any way he could and to follow-up contacts he had made
with student groups the year before. Id. He arranged to translate for Robert Muntz,
a representative of an Australian organization, Community Aid Abroad, during Muntz's visit
to East Timor. Id.

Mr. Muntz met Mr. Bamadhaj at the airport in Dili, East Timor, on November 7, 1991.
Muntz Decl. at 3. Bamadhaj had already been in East Timor for two to three weeks,
travelling widely. Id. In the words of Mr. Muntz, Bamadhaj "was there as an
individual, as a tourist," observing the local culture and making the acquaintance of
Timorese of his own age. Id.

His interest was in getting to know the Timorese as individuals, in understanding the
problems of the area from the perspective of those individuals, and in assisting their
struggle for democracy by publicizing their situation internationally.

Id. at 5.

Muntz had come to East Timor to meet with the Catholic Church and other local
non-governmental organizations about humanitarian aid projects. Id. at 1. He
and Bamadhaj travelled together for five days, during which time Bamadhaj translated at a
series of meetings with Timorese church representatives and Indonesian authorities. Id.
at 4.

B. East Timor: Indonesian Occupation and Repression

East Timor was a colony of Portugal from the year 1702 until 1975. Cmplt. 8. The
Portuguese constitution defined East Timor as within the territorial limits of Portugal
and subject to Portuguese law. Port. Law Decl. at 4-5. With the overthrow of the
Portuguese dictatorship in 1974, Portugal renounced military efforts to maintain control
of its overseas colonies, acknowledged the right of the East Timorese to
self-determination, and made a commitment to facilitate the exercise of that right,
pursuant to the mandate of the United Nations. Id. at 5-6.

The planned peaceful transition in East Timor was disrupted by its neighbor, Indonesia,
which invaded on December 7, 1975, and has maintained an illegal occupation of East Timor
since that date. Cmplt. 8. The United Nations rejects Indonesia's occupation, and
continues to regard East Timor as a non-self-governing territory under the administration
of Portugal. Id.; Clark Decl. at 4, 11. Portugal agrees that it remains the
administrating power in East Timor under its own and international law. Id. at
11, 15; Port. Law Decl. at 6.

In order to maintain its occupation over East Timor, Indonesian military forces have
resorted to a brutal campaign of repression, pursuant to which they have detained,
tortured, executed and "disappeared" many tens of thousands of East Timorese.
Cmplt. 9; Robinson Decl. 7-12; Nairn Decl. 17-26. Approximately
one-third of the Timorese population has been killed, through massive executions and a
disruption of village life which led to tens of thousands of deaths from disease and
starvation. Cmplt. 10; Robinson Decl. 8; Nairn Decl. 17-18.

Torture and other ill-treatment occur "at every level of the military command
structure." Robinson Decl. at 10. Amnesty International quotes the Bishop in
charge of the Catholic Church in East Timor as saying that Indonesian troops torture
political prisoners "just like two plus two is four." Id. at 7.
Amnesty has concluded,

the government, and particularly the military command, has made it clear that basic
human rights can and will be set aside in the name of national security, stability and
order.... [U]nchecked by domestic legal or political mechanisms, the security forces have
continued to commit violations with impunity.

Id. at 8. The human rights abuses in East Timor are the responsibility of the
military leadership, not individual soldiers, and are part of a "clear and persistent
pattern of human rights violations...practiced by the Indonesian authorities as a means
for suppressing political dissent." Id. at 9. This repression has
"the hallmarks of a systematic strategy for the silencing of real and suspected
political opponents." Id.

The Indonesian army has systematically crushed virtually every Timorese institution,
except the Catholic Church. Nairn Decl. at 19. Timorese political parties, peasant
associations, student groups, civic organizations, and the media have been banned, and
their leaders executed. Id. The goal, as described in an army manual, is to
establish "control over all aspects of the life of the community." Id. at
20. This control is enforced by a program of systematic terror and violence, which
was implemented by defendant Panjaitan during the years that he was commander of the
military region which included East Timor. Id. at 22.

The scheduled arrival of a joint Portuguese-United Nations fact-finding delegation in
late 1991 was viewed as an event of extreme significance by both the East Timorese and the
Indonesian military. Nairn Decl. at 27. The Timorese awaited the delegation with
great hope, as an opportunity to tell the world of the repression they suffered under
military rule. Id. They hoped the visit might lead to enforcement of the United
Nations resolutions concerning their right to self-determination. Id.

The Indonesians military, on the other hand, was worried. In an internal memo,
defendant Panjaitan's intelligence corps stated that growing Timorese outspokenness might
require that repression be intensified. Id. at 28.

They were particularly upset that at a ceremony...some Timorese had unfurled
"anti-Indonesia" banners, and shouted various pro-independence slogans. The memo
said that such open dissent "is probably linked to our permissive attitude that makes
them think that we are weak. Because they feel we aren't taking action against them they
had the boldness to show their existence.... [I]f we allow this situation to continue it
would be very harmful to us....

Id. This attitude is in keeping with the Indonesian policy of responding to
peaceful protest with violent repression.

Months in advance of the arrival of the scheduled Portuguese-United Nations delegation,
fresh troops arrived, "as if a second invasion were taking place." Liong Decl.
at 14. A platoon of soldiers was stationed in every village or hamlet, and the
military launched a heavy-handed intelligence operation. Id. at 14-15. In
systematic neighborhood and village meetings, the Timorese were warned that if they
demonstrated or spoke to the delegation they would be killed. Id. at 15;
Nairn Decl. at 30. They were told that mass graves had already been dug for those
who dared to speak out. Nairn Decl. at 30. Panjaitan's soldiers threatened to
eliminate the families of speakers as well, saying that the families of those who spoke to
the delegation would be killed "to the seventh generation." Id.

As the date of the Portuguese-U.N. visit neared, the terror increased: people were
arrested, intimidated and tortured. Id. at 31; Liong Decl. at 15. Many people
went into hiding, including one group in the Motael Church in Dili, the capital of East
Timor. Nairn Decl. at 31.

The Portuguese-U.N. delegation was suddenly canceled on October 26, 1991. Cmplt.
12. As Kamal Bamadhaj wrote in his diary at the time, the cancellation was a blow to the
hopes of the Timorese:

Hearts sank. People could not believe it. The disappointment here today is not only the
deflating of many high expectations, but, more worrying still, the indefinite delay gives
the Indonesian military the perfect opportunity to eliminate all those Timorese who had
exposed their identity while preparing for the visit.

Todd Decl. at 11. As Bamadhaj had predicted, the heightened international
attention focused on East Timor ceased when the delegation was canceled, freeing the
Indonesian military to take even stronger action. Nairn Decl. at 32. Two days later,
the army stormed the Motael Church in the middle of the night, seizing the people who had
sought sanctuary inside. Id. One man, Sebastiao Gomes, was shot at point blank
range and bled to death on the steps of the church. Id. The attack on the church
sent "shock waves" through East Timor, as the church had been the last refuge
from Indonesian violence. Id. at 34.

C. The Santa Cruz Massacre

A mass for Sebastiao Gomes was scheduled for November 12, 1991, two weeks after his
murder, to be followed by a funeral procession from the church to the Santa Cruz cemetery.
Cmplt. 12-13. According to internal military reports, the Indonesian military knew
in advance that the organizers planned to a stage a protest on the way to the cemetery.
Nairn at 36. "It was a 'public secret' that the Timorese resistance was
preparing a demonstration. Even many people abroad were aware of the heated
atmosphere." Liong Decl. at 13. Robert Muntz, Bamadhaj and several other
foreigners in Dili decided to attend the mass and procession with cameras and tape
recorders in the hope that their presence would deter the military from violence. Muntz
Decl. at 6.

Several thousand people gathered at the church, with a palpable sense of tension in the
air. Muntz Decl. at 8. Military troops were stationed all along the route of the
march. The procession was peaceful, with chants of "Free East Timor." Amnesty
International's investigation of the massacre confirmed that "there was absolutely no
physical provocation." Robinson Decl. at 14.

As the procession arrived at the Santa Cruz cemetery, there were no soldiers in sight.
Moments later, however, truckloads of soldiers with rifles appeared and sealed off the
exit route, while another group of soldiers holding M-16 rifles in front of them marched
up along the route the procession had taken. Eyewitness Allan Nairn describes what
happened:

I, together with [another U.S. journalist] went and stood between the soldiers and the
crowd. I thought that we could act as a shield for the Timorese, since the troops would
see that we were obviously foreign reporters. But the soldiers did not stop. They never
broke their marching stride. They just kept coming. They proceeded in discipline and
relative quiet. The soldiers issued no warning, they did not attempt to make the Timorese
disperse. There was no interaction between them and the crowd. The ranks of soldiers
simply marched up to us--we were standing in the middle of the road--enveloped us and
swept right past us. As they got a step of two beyond us (we were about 15 yards in front
of the Timorese), the front rank raised their rifles to their shoulders all at once and
opened fire into the stunned, retreating people. But the Timorese were hemmed in by the
cemetery walls, by the narrowness of the road and their own numbers.

In an instant the street was covered with falling bodies and spurting blood. Each rank
of soldiers kept pouring in rifle fire. They were aiming and shooting people in the back.
They vaulted fallen bodies to cut down those who were still standing. The firing was
thorough and systematic.

Nairn Decl. at 41-42. After the initial burst of gunfire, the army systematically
executed the wounded, over the course of hours. Id. at 46. Eyewitnesses reported
that the executions continued at the military hospital:

Troops came in among the wounded Timorese and finished them off with iron bars, guns,
and knives. Some were suffocated by shoving their heads into pails of blood and vomit....
These executions continued over the course of days and were part of a coordinated
operation.

Id. at 47. Nairn himself was badly beaten by the soldiers, who fractured his
skull with their rifle butts, seized cameras and tape recorders from him and his colleague
and threatened to execute them. Id. at 43. They escaped only when they
convinced the soldiers that they were from the United States, and slipped out of the
country to report the massacre to the outside world. Id.

As a result of the presence of Nairn and his colleague and other foreigners, the Santa
Cruz massacre was widely publicized. One expert, viewing the massacre in the context of
years of gross human rights abuses in East Timor, notes, "only the presence of
foreign journalists made the event at Santa Cruz cemetery unique." Liong Decl. at
5.

D. The Death of Kamal Bamadhaj

Kamal Bamadhaj left the hotel room he shared with Bob Muntz early on the morning of
November 12, carrying Muntz's camera (Muntz Decl. at 7) and a tape recorder (Todd
Decl. at 14). Muntz saw him later at the church, taking pictures, and saw him join
the procession as it left the church heading towards the cemetery. Id. at 9.
He was later seen at the cemetery, at one point near the front, and later in the middle of
the crowd. Nairn Decl. at 44.

Bamadhaj was next seen shortly after the shooting at the cemetery, walking alone about
half a kilometer from the site. Todd Decl. at 6. One report indicates that he may
have already been wounded at that point, but he was able to walk. Id. His mother
recounts the reports she received from eyewitnesses about what happened next:

Witnesses saw a military vehicle approach him; an argument ensued--apparently over his
camera; shots rang out. Kamal fell and was left bleeding by the side of the road. The
autopsy showed that he had been shot once in the arm and once at close range in the chest,
by different calibre weapons.

Id. Anton Marti, a representative of the International Red Cross, found Bamadhaj
bleeding by the side of the road, waving his New Zealand passport, but without his camera.
Id. at 18. Marti placed him in his Red Cross vehicle, and attempted to take
him to a hospital. Id.; Muntz Decl. at 13. Despite the Red Cross markings on
his vehicle and the fact that he was transporting a critically injured man, Marti was
subjected to lengthy delays, first at a military roadblock and later at a police post.
Todd Decl. at 18. After a long wait, Marti was allowed to proceed to the hospital.
"The delay was fatal," says Helen Todd. "Kamal died of loss of blood."
Id.

E. Defendant Panjaitan's Responsibility for the Santa

Cruz Massacre and the Death of Kamal Bamadhaj

The Santa Cruz massacre was a premeditated attack, and part of a lengthy pattern of
violent repression in East Timor. Liong Decl. at 17-24. As Amnesty International
concluded:

[T]he history of Indonesian repression in East Timor is extensive, dates back to the
1975 invasion, and is largely the responsibility of military forces. Such a history belies
Indonesian government claims that the Santa Cruz massacre was an isolated incident, an
unfortunate aberration in an otherwise acceptable pattern of behavior by government
security forces, claims which Amnesty International has described as "far from the
truth." Instead, as we have noted, the "massacre was only the most widely
publicized case of political killings in East Timor."

Robinson Decl. at 16-17. Describing the massacre as "a planned military
operation," and "a very disciplined operation," Amnesty International
concluded that it reflected the policy of the Indonesian government and military. Id.
at 17, 19. Other experts note that the military had dug large holes in advance of
the massacre, which were later used for mass graves. Liong Decl. at 19. In fact, the
massacre was nothing more than what the army had previously threatened to do if the
Timorese staged a peaceful protest: "Panjaitan's forces responded [to the peaceful
protest] exactly as they had publicly warned they would: they opened fire and executed the
Timorese en masse." Nairn Decl. at 35.

Defendant Panjaitan played a key role in the events leading up to the massacre and the
massacre itself. A military commander with the rank of Major-General, Panjaitan was
commander of the region which included East Timor, a post he had held since 1988. Liong
Decl. at 7. For almost 30 years, he had dedicated his career to the suppression of
opposition to the military repression. Id. at 9. His record includes a period
as head of the Red Berets, notorious in East Timor and Indonesia for their interrogation
techniques, intimidation of the families of suspects, and use of the pretext of
"provocation" as an excuse for crushing unrest. Id. at 11-12.

Panjaitan was responsible for organizing both the Indonesian military's preparation for
the scheduled visit of the Portuguese delegation, and its response to the protests planned
after the visit was canceled. Id. at 16, 19. His own statements after the
massacre indicate that it was both a planned operation, and that he took full
responsibility. For example, he was quoted by Amnesty International as defending the
actions of his troops as "in accordance with the standing procedure." Robinson
Decl. at 22.

Panjaitan stated that the military officer immediately responsible for the operation
had made no mistake: "There is no question of any violation. There's no question of
any punishment.... It's quite possible that he will be promoted."

Panjaitan's command position, his history, and his own statements have led expert
observers of the Indonesian military and its actions in East Timor to conclude that he was
directly responsible for the policy of oppression and human rights abuses that included
the massacre. Id. at 24; Nairn Decl. at 2.

Based upon his military position, his own statements... and my familiarity with both
his prior military record and the Indonesian military structure, I conclude that there is
no question that Sintong Panjaitan was responsible for the Santa Cruz massacre and,
therefore, for the death of Kamal Bamadhaj.

Liong Decl. at 8. Panjaitan "oversaw and implemented a program of terror and
systematic violence" in East Timor. Nairn Decl. at 2(a).

The killings on November 12 of the Timorese and Kamal Bamadhaj constitute especially
egregious acts because they were the product of cool, official deliberation which has
produced a longstanding policy of relentless torture and execution of those in Timor who
dare to engage in private dissent or public speech. These killings were not one-time
events or reactions to a situation, but were rather the fruit of an illegal occupation
policy which defendant Panjaitan embraced and which he repeatedly and remorselessly
carried out.

Id. at 2(g), 51.

F. Damages Sustained by Plaintiff Helen Todd and the

Estate of Kamal Bamadhaj

Plaintiff Helen Todd lost her 20-year-old son as a result of defendant's gross human
rights violations. The loss, however, is not hers alone. By all accounts, Kamal Bamadhaj
was an exceptional young man, committed to using his skills to better the world he lived
in. Robert Muntz, one of the last people to see him alive, states,

[W]e are all diminished by his loss. Kamal was a very intelligent, idealistic, mature
young man of twenty years. He was well-travelled, already possessed of the skills of
language, and had the world at his feet. I have no doubt that, had he lived, he would have
used his considerable talents in any number of important social causes and would have made
a substantial mark on society.

Muntz Decl. at 14.

In economic terms, the loss to Bamadhaj's estate can be calculated in terms of
projected lifetime earnings. Using figures obtained from Australia, a U.S. economist has
estimated that those earnings would be in the range of $921,669 to $1,134,911, based on
two sets of assumptions as to how fast Bamadhaj would have progressed in his career.
Wright Statement at pp. 1-3. In addition, a damages award should take into account
Bamadhaj's pain and suffering before he died.

His mother's loss can never be fully compensated. As she herself notes,

No outcome in this lawsuit can adequately compensate for the loss of my son--or for the
loss to him of the life he could have led. He was my only son, one of three children I
raised as a single parent. When we [were] together, we shared a closeness which I
treasured. When we were apart, I felt the pride and joy of knowing that he was out there
in the world doing his chosen tasks, happily and effectively. I watched him grow into an
intelligent and caring young man with much to offer the world in the field of human
rights--perhaps as a scholar, perhaps as a diplomat, perhaps.... We will never know.

The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of
the United States.

(Emphasis added). The current action meets the three statutory criteria for
jurisdiction: (1) plaintiff is an alien seeking damages for (2) a tort committed by the
defendant which (3) violates established international legal norms. Every federal court
that has considered claims similar to those raised by plaintiff has found that 28 U.S.C.
§ 1350 grants federal courts jurisdiction over such an action.

In Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), the first case in the
modern line interpreting the Alien Tort Claims Act, the Second Circuit held that § 1350
affords victims of torture both a forum and a right to compensation under United States
law. In a series of subsequent cases, federal courts have confirmed that the Alien Tort
Claims Act grants jurisdiction to federal courts to consider the claims of aliens for
torts committed in violation of fundamental norms of international law, including summary
execution.

Jurisdiction in these cases is based upon the concepts of both transitory torts and
universal jurisdiction. Torts in violation of the law of nations are classic examples of
transitory torts, under which the plaintiff's right of redress follows the defendant
wherever he goes, even to foreign lands. Filártiga v. Peña-Irala, 630 F.2d at
885; Slater v. Mexican National Railroad Co., 103 U.S. 11 (1880) Additionally,
international law has long recognized universal jurisdiction over certain matters, no
matter where they occur. These offenses, including those alleged in the present case,
"are so universally condemned that the perpetrators are the enemies of all
people." Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir. 1985), cert.
denied, 475 U.S. 1016 (1986).

As the court in Filártiga noted, "for the purposes of civil liability, the
torturer has become--like the pirate and the slave trader before him--hostis humani
generis, an enemy of all mankind." 630 F.2d at 890. Likewise, defendant, who
bears the responsibility for the massacre in which plaintiff's son was executed, is
"an enemy of all mankind," subject to civil liability in this country.

B. The Torture Victim Protection Act

On March 12, 1992, President Bush signed into law the Torture Victim Protection Act,
Pub. L. No. 102-256, 106 Stat. 78 (1992) [hereinafter "TVPA"], which grants
federal courts jurisdiction over civil suits for torture or summary execution, no matter
where committed. Section 2(a) of the TVPA states:

An individual who, under actual or apparent authority, or under color of law, of any
foreign nation...(2) subjects an individual to extrajudicial killing shall, in a civil
action, be liable for damages to that individual's legal representative, or to any person
who may be a claimant in an action for wrongful death.

a deliberated killing not authorized by a previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.

The murder of Kamal Bamadhaj falls squarely within this definition: an unarmed
observer, carrying nothing more dangerous than a camera, he was murdered in cold blood by
troops acting under defendant's direction and control.

Although the TVPA was enacted after this lawsuit was filed, standard principles of
statutory interpretation favor applying it to this action. In general,

a court is to apply the law in effect at the time it renders its decision, unless doing
so would result in manifest injustice or there is statutory direction or legislative
history to the contrary.

Bradley v. School Board of City of Richmond, 416 U.S. 710, 711, 416 U.S. 696
(1974). Although the Supreme Court has made contradictory statements as to the standard to
be applied when determining the retroactive impact of a newly enacted statute, its
holdings can be reconciled. Indeed, the First Circuit has developed a consistent rule
which addresses the concerns expressed in the different Supreme Court cases.

First, statutes which affect substantive rights and liabilities are presumed to be
prospective only. Bennett v. New Jersey, 470 U.S. 632, 638, 470 U.S. 632 (1985) cited
inDemars v. First Service Bank For Sav., 907 F.2d 1237, 1239 (1st Cir. 1990).
However, if substantive rights are not affected, the statute is presumed to apply
retroactively. Demars, supra, 907 F.2d at 1240. Finally, the presumption of
retroactivity applies unless to do so would result in "manifest injustice." Id.
This in turns requires a balancing of public and private interests. Id. The First
Circuit has summarized these guidelines as follows:

We have recently suggested that the touchstone for deciding the question of
retroactivity is whether retroactive application of a newly announced principle would
alter substantive rules of conduct and disappoint private expectations.

Applying this case law to the Torture Victim Protection Act, it is clear that the
statute does not affect substantive rights, but merely clarifies pre-existing law. As
noted in Demars, supra, at 1240 (citations omitted),

'[n]o conduct on the part of either party would have differed if the statute had been
in effect at the time of the fatal incident' and thus no argument can be made that this
provision is either one that 'interferes with antecedent rights' or one 'by which human
action is regulated.'

Indeed, it is difficult to imagine a scenario under which defendant could argue that
his behavior would have been different had he known that the plaintiff would have had not three
but four legal bases for bringing suit against him in U.S. court. Any such argument
defies reality. It also belies the heinousness and cold-bloodedness of the choices
defendant made when he instituted the program of gross human rights violations which
underlies this action. Defendant committed these abuses despite the fact that his conduct
was proscribed by international law and the laws of virtually every country in the world.
Clearly, the enactment of the TVPA would have had no effect on his conduct.

The legislative history of the TVPA supports the view that it was not intended to alter
pre-existing substantive rights. The House Report states, "The TVPA would establish
an unambiguous and modern basis for a cause of action that has been successfully
maintained under an existing law," the Alien Tort Claims Act. H.Rep. No. 367, 102d
Cong., 1st Sess. (1992); seealso S.Rep. No. 249, 102d Cong., 1st Sess.
(1992). The legislative history of the Act thus firmly places the TVPA within the
framework of international, federal and state remedies which provide, to varying degrees,
relief for the same set of torts.

In the absence of any effect on substantive rights, the TVPA is presumed to be
retroactive, unless to do so would result in "manifest injustice." Any
"disappointment of private expectations" must be balanced against "the
public interest in enforcement of the rule." Here, defendant can claim no
disappointment of private interest, given that his conduct was subject to suit in both
state and federal courts in the United States even before the enactment of the TVPA. To
the extent that the TVPA clarifies and strengthens plaintiff's federal cause of action,
the result surely does not rise to the level of a "manifest injustice." Finally,
the public has a strong interest in deterring and punishing gross human rights violations,
and in implementing a uniform federal approach to international human rights suits in
federal courts. This public interest outweighs any minimal impact on defendant.

C. 28 U.S.C. § 1331

This court also has jurisdiction pursuant to 28 U.S.C. § 1331, which provides federal
subject matter jurisdiction in cases "arising under" the Constitution and laws
of the United States. The complaint in this case charges a violation of fundamental norms
of customary international law, which "arise under" U.S. law according to
venerable principles of American jurisprudence. The Supreme Court has stated unequivocally
that the federal courts' "arising under" jurisdiction established by § 1331
"will support claims founded on federal common law as well as those of a statutory
origin." Illinois v. Milwaukee, 406 U.S. 91, 100 (1972). This proposition has
been readily accepted in United States courts. Seealso 13 B. Wright, Miller
& Cooper, Federal Practice and Procedure § 3563 at 61-3 (2d ed. 1984).

The law of nations--customary international law--is part of federal common law. This
principle was articulated by Chief Justice Marshall, who wrote that United States courts
are "bound by the law of nations, which is part of the law of the land." The
Nereide, 13 U.S. (9 Cranch) 388, 423 (1815). The famous prize case, The Paquete
Habana, 175 U.S. 677, 700 (1900), similarly held that United States courts were to
apply the law of nations as federal law. More recently, the Supreme Court has directed
federal courts to apply international norms as part of federal common law in a series of
expropriation cases commencing with Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398 (1964).

As the Second Circuit held in Filártiga, international human rights standards
also unquestionably form part of domestic common law:

The law of nations forms an integral part of the common law, and a review of the
history surrounding the adoption of the Constitution demonstrates that it became a part of
the common law of the United States upon the adoption of the Constitution.

Filártiga, 630 F.2d at 886 (emphasis in original). Thus, as international law is
part of federal common law and the "arising under" jurisdiction established by
§ 1331 supports claims founded on such common law, this court has jurisdiction under 28
U.S.C. § 1331. Furthermore, United States courts have long recognized a private remedy
for violations of fundamental norms of international law. SeeThe Paquete Habana,
175 U.S. 677, 700 (1900); La Amistad de Rues, 18 U.S. (5 Wheat.) 385 (1820) (prize
case); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (expropriation). First
National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983)
(international law limits on manipulation of the corporate form); First National City
Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) (international law rights against
illegal expropriation); Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d
875 (2d Cir. 1981) (international law right against illegal expropriation).

Several courts have recognized § 1331 jurisdiction over international human rights
cases, including Martinez-Baca v. Suarez-Mason, 87-2057 (N.D.Cal. April 22, 1988),
a case which could not be filed under § 1350 because the plaintiff was a U.S. citizen. In
a factually parallel case, the court in Filártiga assumed jurisdiction pursuant to
§ 1350, but stated "our reasoning might also sustain jurisdiction under the general
federal question provision, 28 U.S.C. § 1331." Filártiga, supra, at
887 n.22. Most recently, the court in Abebe-Jiri explicitly relied on both § 1331
and § 1350 as bases for jurisdiction. Abebe-Jiri v. Negewo, 90-2010 (N.D.Ga. Aug.
20, 1993), appealdocketed, 93-9133 (11th Cir. Sept. 10, 1993), slip op. at
p. 7 (for text of decision, see Ex. J, Judgments in Similar Cases). Regarding §
1331, the court held,

The claims of all of the plaintiffs "arise under" United States law, which
includes customary international law as part of U.S. common law; thus subject matter
jurisdiction is appropriate under 28 U.S.C. section 1331.

Id. at p. 7, 2.

D. Pendant Jurisdiction

This court has pendant jurisdiction over plaintiff's claims for wrongful death, assault
and battery and intentional infliction of emotional distress. United Mine Workers of
America v. Gibbs, 383 U.S. 715 (1966). Plaintiff's claims are transitory torts,
governed by either the law applicable in East Timor or Massachusetts law. See
discussion, infra.

II. PLAINTIFF IS ENTITLED TO COMPENSATORY AND PUNITIVE DAMAGES FOR SUMMARY EXECUTION
AND FOR THE MUNICIPAL

TORTS COMMITTED BY DEFENDANT

A. Plaintiff is Entitled to Compensatory and Punitive Damages for Summary Execution,
Measured by Accepted Principles of International Law and Federal Common Law

The defendant has violated customary international law through the summary execution of
Kamal Bamadhaj, plaintiff's son. The measure of damages under international law as well as
federal common law is restoration of the status quo ante, if possible, and money damages
to compensate for all injuries, direct and consequential, to the extent that the status
quo cannot be restored. Plaintiff should be awarded damages to compensate for all the
pecuniary and non-pecuniary injuries resulting from the defendant's violations of
internationally secured human rights. International and federal common law also authorize
imposition of punitive damages in order to punish and deter such serious violations of
international law.

1. International Law and Federal Common Law Provide the Measure of Damages for
Plaintiff's Interna-tional Law Claims

The basic rules for determining damages in international tort cases were set forth in Filártiga
v. Peña-Irala, in the decision on remand. 577 F. Supp. 860, 863 (E.D.N.Y. 1984). The
court noted that the "tort" to which the statute refers means a wrong "in
violation of the law of nations," not merely "a wrong actionable under the law
of the appropriate sovereign state," and that, therefore, "it should determine
the substantive principles to be applied by looking to international law," which
became a part of the common law of the United States upon the adoption of the
Constitution. Id. at 862-63.

Applying international choice of law principles, as incorporated into U.S. common law,
the court looked first to Paraguayan damage rules to determine whether those rules would
inhibit enforcement of international law, but concluded that Paraguayan law would not
allow punitive damages. Id. at 863-4. Reasoning that "it is essential and
proper to grant the remedy of punitive damages in order to give effect to the manifest
objectives of the international prohibition against torture" (id. at 865), the
Filártiga court explicitly applied international law, invoking its common-law
powers under § 1350:

The international law prohibiting torture established the standard and referred to the
national states the task of enforcing it. By enacting Section 1350, Congress entrusted
that task to the federal courts and gave them power to choose and develop federal remedies
to effectuate the purposes of the international law incorporated into the United States
common law.

Id. at 863.

No court adjudicating a claim under the Alien Tort Claims Act has applied a different
measure of damages. See Judgments in Similar Cases, Ex. J. Following the precedent
established by the district court in Filártiga, federal district courts have
consistently looked to international law, as incorporated into federal common law, to
determine damages, including punitive damages, in cases where the law of the country where
the abuse took place would not adequately vindicate the international interests at stake.
In Martinez-Baca v. Suarez-Mason, 87-2057 (N.D.Cal., Apr. 22, 1988) (slip op.) the
court clearly articulated its reasoning, holding that "[i]nternational law
principles, as incorporated in United States common law, provide the proper rules for
calculating the damages to be awarded...." Id. at 4. Every § 1350 case
against an individual charged with gross human rights violations has awarded punitive and
compensatory damages to the plaintiffs, whether or not allowed by the law of the host
country. Where the local law allowed punitive damages, as in Trajano, the court
applied that law. Where it did not, the court applied a federal common law/international
law measure of damages.

In this case, the application of choice of law rules is complicated by the fact that
East Timor has been under illegal military occupation for over 18 years. International law
expressly prohibits the application of the law of an aggressor to the illegally occupied
territory. Clark Decl. at 18. Thus, Indonesian law does not apply. If necessary to
refer to a body of national law, the law of Portugal, the administering power under United
Nations mandates, would govern.

Given that Portugal has not had actual control over the territory since the illegal
Indonesian invasion in 1975, plaintiff asserts that the court should look directly to
federal common law (and, therefore, international law), and the body of precedents
applying it to § 1350, rather than first applying Portuguese law. However, plaintiff has
attached a declaration detailing the applicable Portuguese law, in the event that the
Court wishes to consult it. Ex. H, Port. Law Decl. As that declaration makes clear,
Portuguese law provides for full compensatory damages for economic loss, projected loss of
income and pain and suffering. Id. at 11-14. Further, although Portuguese law does
not provide for punitive damages as understood in the United States, its definition of
compensatory damages includes many of the concepts we consider "punitive,"
including the brutality of the defendant's conduct, the suffering of the victim, and the
defendant's ability to pay. Id. at 12. Thus, under Portuguese law, this court could
make an award of punitive damages. If, however, the Court were not convinced that the
measure of such damages is adequate to vindicate the international law interests at stake
in this case, it should turn to federal common law powers and apply an international law
measure of punitive damages.

2. Under International Law and Federal Common Law, Plaintiffs are Entitled to
Compensation for All Injuries Proximately Caused by Defendant's Acts.

The federal common law of damages incorporates the basic international rule that
entitles a victim to compensation for all injuries proximately caused by defendant's
wrongful acts:

It is a principle of international law...that every violation of an international
obligation which results in harm creates a duty to make adequate reparation.

Velasquez Rodriquez Case, IACourtHR, Judgment of July 21, 1989, 25, 11 HRLJ
127 (1989) (awarding the family of a disappeared person damages for loss of earnings and
psychological injuries). The Inter-American Court relied on the leading case on the
international law of damages, Case Concerning the Chorzow Factory (Germany v.
Poland), 1928 P.C.I.J. (Ser. A), No. 17, at 47, in which the Permanent Court of
International Justice held that compensatory damages include not only immediate and actual
losses, but consequential damages as well:

[R]eparation must, so far as possible, wipe out all the consequences of the illegal act
and reestablish the situation which would, in all probability, have existed if that act
had not been committed.

Id.

When injuries to individuals are at issue, as in this case, international law allows
damages to be awarded for a broad range of physical, emotional, and social harms:

That one injured is, under the rules of international law, entitled to be compensated
for an injury inflicted resulting in mental suffering, injury to his feelings,
humiliation, shame, degradation, loss of social position or injury to his credit or to his
reputation, there can be no doubt, and such compensation should be commensurate to the
injury.

M. Whiteman, Damages in International Law, 718-719 (1943).

Federal courts adjudicating claims under the Alien Tort Claims Act have awarded damages
for the full range of injuries compensable under international law. See Judgments
in Similar Cases, Ex J. In Forti v. Suarez-Mason, 87-2058, slip op. at 3 (N.D.Cal.
Apr. 20, 1990), the court awarded compensatory damages for pain and suffering totalling $4
million against an Argentine general for injuries suffered by two plaintiffs and their
relatives during the Argentine "dirty war." In Filártiga, the court
awarded the decedent's father and sister $375,000 for pain and suffering, loss of
companionship, disruption of family life, funeral expenses, medical expenses, future
medical expenses for treatment of psychological injuries, and lost income. 577 F. Supp. at
865. See alsoQuiros de Rapaport v. Suarez-Mason, 87-2266, slip op.
(N.D.Cal. Apr. 11, 1989) ($30 million in compensatory damages awarded to four relatives of
persons tortured and murdered for pain and suffering); Siderman v. Republic of
Argentina, 82-1772, slip op. (C.D.Cal. Sept. 28, 1984), 965 F.2d 699 (9th Cir. 1992), cert.
denied 113 S.Ct. 1812 ($2.7 million awarded to compensate plaintiffs for their
physical injuries, loss of earnings, medical expenses, moral damages, loss of consortium,
as well as pain, suffering, and emotional distress); Trajano v. Marcos, No. 86-0207
(D.Haw., May 19, 1991), 978 F.2d 493 (9th Cir. 1992), cert. denied 61 U.S.L.W.
3832, 3834 (mother of victim awarded $1.25 million compensatory damages for mental anguish
because of murder of her son.)

The compensatory damages demanded in this case, $5 million for summary execution, are
certainly comparable to those in these prior cases. First, Kamal Bamadhaj's pain and
suffering must be compensated. This young man attempted to escape after witnessing a
brutal massacre. He was stopped by soldiers on the street, shot and left bleeding on the
road. His apparent rescue by the International Red Cross was aborted by security forces,
who twice maliciously stopped the emergency vehicle. Kamal Bamadhaj bled to death from his
wounds.

Bamadhaj's estate must also be compensated for his lost earnings, an amount of
approximately $1 million, as estimated by economist Wright. Finally, his mother's loss is
incalculable: the senseless murder of a son who was both child and friend to her, who she
had every reason to expect would mature into a dedicated, compassionate man.

3. Plaintiff is Entitled to Punitive Damages under International Law and Federal Common
Law.

Summary execution is universally condemned as a violation of fundamental human rights.
Law Profs. Aff., Ex. I. The international community has few mechanisms of its own to
punish such violations and therefore looks to domestic courts to reflect the force of the
international prohibition in their judgments and damage awards. See, e.g., Declaration
on the Protection of all Persons from Being Subjected to Torture, General Assembly
Res. 3452, 30 U.N. G.A.O.R. Supp. (No. 34), 91 U.N.Doc. A/1034 (1975), arts. 7, 11.

Federal common law has followed Filártiga's reasoning that punitive damages are
the only real mechanism available to uphold international sanctions against human rights
abuses: "[T]he objective of the international law making torture punishable as a
crime can only be vindicated by imposing punitive damages." Filártiga, 577 F.
Supp. at 863-864 ($10 million in punitive damages). Federal courts entering judgments in
subsequent international human rights cases have all followed Filártiga and
awarded punitive damages. See Judgments in Similar Cases, Ex. J. See, e.g.,
Forti, 87-2058, slip op. (N.D.Cal., Apr. 25, 1990) ($4 million in punitive
damages); Quiros de Rapaport, 87-2266, slip op. (N.D.Cal., Apr. 11, 1989) ($30
million in punitive damages); Martinez-Baca, 87-2057, slip op. (N.D.Cal. Apr. 22,
1988) ($10 million in punitive damages). No federal court has ever held that punitive
damages could not be awarded in a case against an individual responsible for international
human rights abuses.

Another analogous body of law has grown up under 42 U.S.C. § 1983, which is in many
ways a domestic counterpart to international human rights law. The Supreme Court has
consistently held that punitive damages are appropriate under § 1983 when the defendant's
conduct was deemed willful, wanton, and malicious. Smith v. Wade, 461 U.S. 30, 51
(1983). The amount of punitive damages should correspond to both the seriousness of the
wrong and the injury to the plaintiff:

In ascertaining [damages] the jury may consider all the facts which relate to the
wrongful act of the defendant, and its consequences to the plaintiff; but they are not at
liberty to go farther, unless it was done wilfully, or was the result of reckless
indifference to the rights of others . . . . In that case, the jury are authorized, for
the sake of a public example, to give such additional damages as the circumstances
require. The tort is aggravated by the evil motive, and on this rests the rule of
exemplary damages.

The defendant in this case unquestionably had an "evil motive" in authorizing
and implementing a program of repression and terror which included the massacre in which
plaintiff's son was executed. As in Filártiga, a punitive damage award is
necessary "for the sake of public example":

Punitive damages are designed not merely to teach a defendant not to repeat his conduct
but to deter others from following his example. To accomplish that purpose this court must
make clear the depth of the international revulsion against torture and measure the award
in accordance with the enormity of the offense. Thereby the judgment may perhaps have some
deterrent effect.

Filártiga, 577 F. Supp. at 866 (citation omitted). The Filártiga court
awarded $10 million in punitive damages against an individual policeman guilty of an
apparently isolated, albeit vicious, incident of torture. The present case demands a
correspondingly larger punitive damage award since the defendant was one of the architects
and administrators of a campaign of human rights abuses with thousands of victims.

The nature and scope of the defendant's acts, his evil motive, and the need for
deterring such acts in the future all place plaintiff's prayer for at least $10 million in
punitive damages for summary execution squarely in line with the awards that federal
courts regularly make in cases involving "far less reprehensible" conduct than
that of this defendant. Filártiga, 577 F. Supp. at 866. A punitive award of at
least $10 million is thus both reasonable and appropriate.

B. Plaintiff is Entitled to Compensatory and Punitive Damages for Harm Caused by
Defendant's Municipal Law Violations

In addition to her international law claims, plaintiff asserts, as alternative grounds
for relief, the municipal law torts of wrongful death, assault and battery and intentional
infliction of emotional distress. In determining the choice of law governing the award of
damages in these claims, this court should apply Massachusetts choice of law principles,
which require either the application of Massachusetts or East Timor substantive law on
damages. Under either law, plaintiff is entitled to an award of compensatory and punitive
damages.

1. Massachusetts Choice of Law Rules Determine What Law Applies to Plaintiff's
Municipal Law Claims

Massachusetts choice of law rules apply to determine what laws govern plaintiff's state
law claims. Massachusetts has turned away from the rigid, single-factor, lex loci analysis
in favor of the more flexible "most significant relationship" analysis
exemplified by the Restatement (Second) of Conflict of Laws (1971). Bi-Rite
Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440 (1st Cir. 1985); Pevoski v
Pevoski, 371 Mass. 358 (Mass. 1976); Choate, Hall & Stewart v. SCA Servs., Inc.,
378 Mass. 535 (Mass. 1979). Under this standard, it is likely that the law applicable in
East Timor would apply, as the injuries and conduct causing them occurred in East Timor;
as explained earlier, this would be Portuguese law.

2. The Law of Portugal, Which Governs a Claim Arising in East Timor, Provides for
Compensatory and Quasi- Punitive Damages for Plaintiff's Claims

As discussed in detail in the Portuguese Law Declaration, Exhibit H, Portuguese law
provides for a full range of compensatory damages pecuniary and non-pecuniary harm,
including loss of future earnings and pain and suffering. Id. at 7, 11-14. An
economist has estimated the value of Kamal Bamadhaj's lost earnings as in the range of
$921,669 to $1,134,911, depending on how fast his career had advanced. Compensatory
damages should included this amount, his pain and suffering before he died, and his
mother's loss. Quasi-punitive damages would take into account the egregiousness of the
defendant's conduct and the suffering of the victim.

3. Massachusetts Law Would Provide for Compensatory and Punitive Damages for
Plaintiff's Claims

In the unlikely event that the Court decided to apply Massachusetts law to this case,
under the Massachusetts Wrongful Death Act, plaintiff would be entitled to recover
compensatory damages for injuries she suffered as a result of defendant's murder of her
son. Mass. Gen. Laws ch. 229, § 2. The Act provides recovery for pecuniary and
non-pecuniary losses resulting from wrongful death. Pecuniary damages include compensation
for reasonably expected net income and for the value of the services, protection, care and
assistance of the decedent. Plaintiff is also entitled to damages for non-pecuniary losses
including loss of consortium and society, companionship, comfort, guidance, and counsel
provided by the decedent. Finally, plaintiff may also recover for the "conscious
suffering resulting" from decedent's wrongful death. Mass. Gen. Laws Ch. 229, § 6.

The Act also allows punitive damages where "the decedent's death was caused by the
malicious, willful, wanton, or reckless conduct of the defendant." Mass. Gen. Laws
Ch. 229, § 2. Defendant's design, control and supervision of program of human rights
violations which including the massacre in which plaintiff's son was killed, was
malicious, willful, wanton and reckless. Plaintiff is therefore also entitled to punitive
damages.

Under Massachusetts case law, plaintiff is also entitled to recover compensatory
damages for assault and battery and for intentional infliction of emotional distress.
These damages include compensation for physical and mental suffering and loss of
consortium and society. Coblyn v. Kennedy's, Inc., 359 Mass. 319 (1971); Foley
v. Polaroid Corp., 400 Mass. 82 (Mass. 1987); Moore v. Eli Lilly and Co., 626
F. Supp. 365 (D. Mass. 1986); George v. Jordan Marsh Co., 359 Mass. 244 (1971); Agis
v. Howard Johnson Co., 371 Mass. 140, 145 (1976). To recover for emotional distress,
the defendant's conduct must have been "extreme and outrageous, beyond all possible
bounds of decency and utterly intolerable in a civilized community." Agis, at
145. Defendant's conduct exceeds this threshold. The defendant intended to inflict
emotional distress or knew or should have known that emotional distress was a likely
consequence of his acts. Boyle v. Wenk, 378 Mass. 592 (1979) (court found
intentional infliction of emotional distress resulted from defendant's harassment of
plaintiff on the phone and in person).

It is difficult to find cases in Massachusetts that are truly comparable to the present
case. However, a review of recent damages awards provides strong support for the
plaintiff's claim. For example, in Sweeney v. Westvaco Co., 926 F.2d 29,(1st Cir.
1991), the wife of a victim who suffered an emotional breakdown received an award for $1.5
million in compensatory damages for loss of consortium. Similarly, in Egan v. Holderman,
26 Mass. App. Ct. 942 (Ct. App. 1988), the plaintiff received an award of $1 million in
compensatory damages for injuries from a traffic accident, and his wife obtained an award
of $250,000 in compensatory damages for loss of consortium. Although the injuries suffered
in these examples pale by comparison to the present case, they demonstrate that
plaintiff's demand for compensation is reasonable under the severe circumstances of this
case.

III. THE FOREIGN SOVEREIGN IMMUNITY ACT DOES NOT IMMUNIZE DEFENDANT FROM LIABILITY

First, the plain language and the unambiguous legislative history of the FSIA
demonstrate that it does not immunize individuals. Section 1603(a) of the FSIA carefully
defines the beneficiaries of its protection to include a foreign state, its political
subdivisions, "or an agency or instrumentality of a foreign state as defined in
subsection (b)." Subsection (b) of § 1603 then defines an "agency or
instrumentality of a foreign state" as an "entity":

(1) which is a separate legal person, corporate or otherwise, and

(2) which is an organ of a foreign state or political subdivision thereof, or a
majority of whose shares or other ownership interest is owned by a foreign state or
political subdivision thereof, and

(3) which is neither a citizen of a State of the United States as defined in
section 1332(c) and (d) of this title [defining corporate citizenship in U.S.
jurisdictions], nor created under the laws of any third country. (Emphasis added).

The plain language of the FSIA requires that an "agency or instrumentality of a
foreign state" must be both a separate legal person--artificially created and
not natural--and an organ of the foreign state or a political subdivision thereof
or be majority-owned by the state. "The terminology of these sections--'agency,'
'instrumentality,' 'entity,' 'organ'--makes it clear that the statute is not intended to
apply to natural persons...." Republic of Philippines v. Marcos, 665 F. Supp.
793 (N.D. Cal. 1987) (foreign sovereign immunity does not apply to Philippine Solicitor
General). Had Congress intended also to immunize officials and employees of foreign
states, it would have used those terms explicitly, as it did elsewhere in the same
statute, at 28 U.S.C. § 1605(a)(5) (waiving immunity of foreign sovereign for certain
tortious acts or omissions by "any official or employee" of the State). In
keeping with this view of the FSIA, the Restatement (Third) of the Law of Foreign
Relations, §§ 451 etseq., which incorporates changes instituted by the
FSIA, has eliminated individuals from the list of parties entitled to sovereign immunity. Compare
Restatement (Second) of the Law of Foreign Relations § 69 (pre-FSIA sovereign immunity
covered heads of state).

The statute's plain meaning is confirmed by the unambiguous legislative history of §
1603(b)(1) and (2). Section 1603(b)(1) "is intended to include a corporation,
association, foundation, or any other entity which, under the law of the foreign state where
it was created, can sue or be sued in its own name," and § 1603(b)(2)
"requires that the entity be either an organ of a foreign state...or that a majority
of the entity's shares or other ownership interest be owned by a foreign state...."
H.R. Rep. No. 1487, 94th Cong., 2d Sess. reprinted in 1976 U.S. Code Cong. &
Admin. News 6604, 6614 (emphasis added). The legislative history continues in a manner
that makes it unmistakable that the FSIA was not meant to cover individuals:

As a general matter, entities which meet the definition of an "agency or
instrumentality of a foreign state" could assume a variety of forms, including a
state trading corporation, a mining enterprise, a transport organization such as a
shipping line or airline, a steel company....

Id. Defendant Panjaitan is none of these.

Second, no court has granted immunity to individuals who have committed acts as heinous
as those alleged here. Numerous courts have considered suits against foreign officials
sued for torture or other egregious human rights violations that are contrary to the laws
of their countries and to universally recognized norms of international law, and none of
those courts has ever applied the FSIA to immunize those individuals. See, e.g.,
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980); Forti v. Suarez-Mason,
672 F. Supp. 1531 (N.D. Cal. 1987). To the contrary, in the few cases which grant immunity
to individuals under the FSIA, the immunized individual was acting both under the
color of official authority and within the scope of his or her lawful authority as
an official of a foreign state.

Filártiga and its progeny demonstrate that an act of torture or other
gross human rights violations, carried out by the order or with the approval of an
official, can never be within the scope of an official's discretionary authority. See,
e.g., Jimenez v. Aristeguieta, 311 F.2d 547, 557-58 (5th Cir. 1962), cert.
denied, 373 U.S. 914 (1963) (serious financial crimes can never be considered as
within lawful authority of official); Letelier v. Republic of Chile, 488 F. Supp.
665, 673 (D.D.C. 1980) (assassination is "clearly contrary to the precepts of
humanity as recognized in both national and international law" and thus cannot be
considered a part of an official's authority).

IV. ALL OTHER DEFENSES HAVE BEEN WAIVED, AND, IN ANY EVENT,

ARE WITHOUT MERIT

The defenses of act of state, statute of limitations and forum non conveniens are
nonjurisdictional and need not be addressed by the court on its own motion. Defendant has
waived them by his failure to defend this action. However, defendant would not have
prevailed on any of these issues even had they been properly raised.

A. The Act of State Doctrine Does Not Protect Defendant

The burden of raising and proving the applicability of the act of state doctrine rests
upon the party seeking its protection. Defendant, having failed to meet that burden, has
waived the defense of act of state. Even if raised, however, the doctrine would not have
protected defendant, given that (1) his violations of law could never be considered
official public acts of a foreign sovereign; and (2) treaties and other "controlling
legal principles" exist that universally condemn his actions and thus render the act
of state doctrine inapplicable.

The act of state doctrine applies only when acts committed are official public acts,
not "crimes committed by the Chief of State done in violation of his position and not
in pursuance of it. [Such crimes] are as far from being an act of state as rape." Jimenez
v. Aristeguieta, 311 F.2d 547, 558 (5th Cir. 1962), cert. denied, 373 U.S. 914
(1963) (financial crimes are not acts of state). See, e.g., Letelier v.
Rep. of Chile, 488 F. Supp. 665, 673 (D.D.C. 1980) (assassination cannot be an act of
state). As Judge Sofaer succinctly explained, "[t]he actions of an official acting
outside the scope of his authority as an agent of the state are simply not acts of
state." Sharon v. Time, 599 F. Supp. 538, 544 (S.D.N.Y. 1984) (Sofaer, J.).

No court has ever invoked the act of state doctrine in an international human rights
case to shield a defendant who has committed official torture or other violations of
fundamental human rights, regardless of that defendant's present or former government
position. Filártiga, 630 F.2d at 889-890; Forti, 672 F. Supp. 1531, 1546
(N.D. Cal. 1987), on reconsid., 694 F. Supp. 707, 710 (N.D. Cal. 1988); Trajano
v. Marcos, 878 F.2d 1439 (9th Cir. 1989) (unpublished disposition).

In addition, the acts of which defendant stands accused are universally condemned by
treaties, agreements and international legal norms. Compl. 5; Law Profs. Aff., Ex.
I. As the Supreme Court explained in Banco Nacional de Cuba v. Sabbatino, 376 US
398, 428 (1964):

It should be apparent that the greater the degree of codification or consensus
concerning a particular area of international law, the more appropriate it is for the
judiciary to render decisions regarding it, since the courts can then focus on the
application of an agreed principle to circumstances of fact rather than on the sensitive
task of establishing a principle not inconsistent with the national interest or with
international justice.

Thus, defendant could not have invoked the act of state doctrine.

B. There is No Statute of Limitations Bar to Deciding

This Suit

As noted above, defendant has waived any statute of limitations claim by his failure to
plead or otherwise defend. However, even were this Court to consider this claim, it would
find that plaintiff's claims are not time-barred: this lawsuit is based upon the November
1991 execution of plaintiff's son. The complaint was filed and served in September 1992,
less than one year later. Under no possibly applicable statute of limitations is the claim
barred.

C. This Case Raises No Issue of Forum Non Conveniens

Defendant has waived any forum non conveniens claim by his default for failure to plead
or otherwise defend. As the Supreme Court repeatedly has held, if a defendant is properly
served with process by a court with subject matter jurisdiction, the defendant waives all
claims of venue by defaulting. Hoffman v. Blaski, 363 U.S. 335, 343 (1960); seealsoCommercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177
(1929); Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165 (1939).

Even if the court were to determine that it should explore the issue of forum non
conveniens despite the default, no grounds exist for a dismissal in the instant case.
Before a district court can dismiss a case on grounds of forum non conveniens, it must
find that there exists an alternate forum in which the case could be tried. SeeMercier
v. Sheraton International, Inc., 935 F.2d 419, 423-24 (1st Cir. 1991).

The two preconditions for the existence of a satisfactory alternative forum are
"(1) all parties can come within that forum's jurisdiction, and (2) the parties will
not be deprived of all remedies or treated unfairly...." Id. at 424. However,
where plaintiffs and others risk execution in another forum, that forum cannot, in the
interests of justice, be considered adequate. SeeRasoulzadeh v. Associated
Press, 574 F. Supp. 854 (S.D.N.Y. 1983), aff'd without opinion, 767 F.2d 908
(2d Cir. 1985) (cited in Mercier, 935 F.2d at 424) (likelihood that plaintiff's
return to Iran would result in execution of plaintiff rendered alternate Iranian forum
inadequate for purposes of forum non conveniens). The second Mercier requirement
for an adequate alternate forum--that the parties will not be deprived of all remedies or
treated unfairly--also cannot be met in East Timor.

Moreover, the burden of proof rests on the defendant both to show that an adequate
alternative forum exists and "to provide enough information to enable the District
Court to balance the parties' interests." Id. at 258. Defendant has not done
so. Thus, there is simply no issue here regarding dismissal for forum non conveniens.

CONCLUSION

In the last entry in his diary, just before the massacre in which he was killed, Kamal
Bamadhaj predicted "another wave of genocide against the Timorese people," and
wrote,

Whether total genocide occurs in East Timor or not depends not only on the remarkably
powerful will of the East Timorese people, but also on the will of humanity, of us all.

Todd Decl. at 25. His mother, Helen Todd, views this lawsuit as "an
important piece of humanity's reaction to that genocide--and as a piece of a monument to
all of those who fell that day in East Timor in search of democracy." Id. By
initiating this litigation, Todd has employed a powerful tool on behalf of all humanity.
As recognized by the Filártiga court, lawsuits such as these are "a small but
important step in the fulfillment of the ageless dream to free all people from brutal
violence." Filártiga, supra, 630 F.2d at 890.

For all of the above reasons, plaintiff's Motion for Default Judgment should be
granted, and plaintiff should be awarded substantial compensatory and punitive damages
commensurate with the harm she and the estate of her son have suffered and the
egregiousness of defendant's behavior.

Respectfully submitted,

BETH STEPHENS

MICHAEL RATNER

JOSE LUIS MORIN

JENNIFER GREEN

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, 7th floor

New York, NY 10012

212-614-6464

HARVEY KAPLAN

MAUREEN O'SULLIVAN

JEREMIAH FRIEDMAN

KAPLAN, O'SULLIVAN & FRIEDMAN

114 State St., Suite 300

Boston, MA 02109

617-523-3049

Attorneys for Plaintiff

February 14, 1994

Plaintiff and her counsel wish to express their grateful appreciation to Jerry Spier
and David Sullivan of Yale Law School for their valued assistance in the preparation of
this Memorandum and the accompanying Exhibits.